Many Judges are reluctant to punish delinquent discovery. To many prosecuting attorneys, it can be a frustrating experience – sending out demands, then follow-up letters, arranging for meet-and-confers, and finally, motion practice that ends with the other side getting a further extension and, perhaps, a slap on the wrist. Of course, any production made during this time, even if itself inadequate or just a document dump, can start the process over. The upshot to the delinquency (and indeed often the purpose of it) is that time is wasted, the prosecuting attorney is forced to spend their client’s money, and then explain to their client that they are doing all they can. This position looks even more impotent if the prosecuting attorney and client made proper and timely disclosure of their documents.
However, in our recent blogs1, we have been noting a heartening trend in cases where Judges are cracking down on this bad-faith gamesmanship, and the recent case Lynx Capital Partners of NJ, LLC v. Bayes Capital LLC, Sup. Ct., Index No. 650722/2019 confirms that Justice Andrew Borrok in New York County is continuing that trend.
In Lynx Capital, an action for breach of contract, the plaintiff served the defendant document demands in January 2021, along with subpoenas to individual defendants who were not yet part of the case. These demands were due in February, though at the preliminary conference in February the parties were ordered to serve demands in March and respond by the end of April. Depositions were then to have been completed in June and all fact discovery complete by mid-July.
Then, the gamesmanship began. The defendant served its response in March – objecting to 34 of the 39 requests. It seems that the subpoenas received no response. The plaintiff promptly filed a motion to compel, which was granted with a few exceptions in late June which, of course, moves all of the subsequent dates. The defendant was given 45 days to produce the documents, and a conference was set for September.
However, two days after the documents were due, the defendant requested a two-week extension. The Court refused to grant it. Nevertheless, two weeks later, the defendant handed over a 34,000-page document production which did not indicate which documents were responsive to which request, a prototypical document dump. To make matters worse, many documents were password protected, and no passwords were provided until October!
At the September status conference, the parties were ordered to meet and confer by the end of September, and if there were any disagreements, the plaintiff had left to file an Order to Show Cause for relief by October 4. Not surprisingly, the plaintiff ended up filing the motion and asked for sanctions. In the decision issued in late November, the sanctions were denied, but did Order, inter alia, another meeting and confer in early December where the plaintiff would provide a deficiency letter (a detailed account of all of the points where the defendant failed in its discovery obligations) and a final response deadline of December 31, 2021. If any deficiencies remained, the plaintiff could renew its motion for sanctions.
Already then, the defendant has pushed the case nearly a year and has forced the plaintiff to make multiple motions and attend multiple conferences, and still could make a proper production with no adverse effects.
The defendant, however, made one more push and asked the Court on December 29 for an additional week, which was not granted. In early January, the plaintiff renewed its motion for sanctions and to strike the defendant’s answer. Two days later, the defendant made another inadequate document production. Then, in an astounding display of confidence, the defendant opposed the plaintiff’s motion and further brought a cross-motion to dismiss the complaint.
The Court, citing CPLR 3126(3) and ancillary precedent, found that the multiple last chances and flouting of orders and warnings – and indeed the inadequate nature of the production itself – were sufficient to strike the defendant’s answer. The Court noted that the defendant failed to produce such items as tax returns, bank statements, or affidavits explaining why certain databases were not searched – in other words, documents well within its purview.
Judge Borrok’s detailed decision, setting forth exact dates and specific deficiencies, really shocks the reader as to the level of delinquency of the defendant in failing to respond. It seems that this narrative might be the Judge’s way of shocking the conscience of the courts generally into really taking notice of such “willful and contumacious conduct continually flouting court orders for a significant period of time following admonition from the court.” Perhaps decisions like these will start to make parties think twice before defying discovery obligations, and these abusive practices can continue to be stemmed.
 Available at https://www.barnespc.com/news-articles/cplr-31263-the-ultimate-remedy-for-willful-failure-to-disclose/ and https://www.barnespc.com/news-articles/gibbs-leveling-the-playing-field-for-chronic-non-compliance/.